Not many could have missed the media coverage of Cardinal George Pell’s sentencing hearing this week. It was a climactic scene that followed a lengthy and emotional court drama for the victims and survivors, the Church, the Accused, his lawyers, and the community as a whole.
Details had previously been suppressed specifically to deny access to the kind of information that is now being so freely shared. It has fueled feelings of outrage in some sections of the community that the trial was held in ‘secret’ in the first place. And although the media did a fairly consistent job at keeping the public informed, it seems that there is residual discontent with information at the trial stage being kept under wraps.
It has raised questions about the principle of “open justice” and the role of suppression orders in criminal cases in Victorian courts. The impression that in this case, the rules operated to protect an Accused to the detriment of the victims and community of survivors who had a vested interest in being kept up to date with the hearing of Pell’s criminal charges.
In fact it was not about personal protection for Pell but rather preservation of one of the most fundamental pillars of our legal system – the right to a fair trial. A right that must be protected – especially in the most unpopular or notorious of cases – or it is the famous scales of justice that are at risk of becoming unbalanced.
The rules are there to ensure a fair trial for all, rather than to favor any particular party. What may be less well known is that rules of this kind often operate to benefit those that make the complaints, rather than those accused of a crime.
The principle of “open justice” in simple terms is the notion that court proceedings should be open to the public and not hidden from view. It is considered a fundamental feature of a fair trial because it ensures the judicial system is ultimately held accountable for its decisions.
Suppression orders are the practical way in which exceptions or limitations have been placed on this long-held principle. The Open Courts Act 2013 (Vic) (“the Act”) sets out how and when suppression orders may apply in all Victorian courts and tribunals.
The Open Courts Act 2013 contains a presumption in favor of the disclosure of information, and in favor of proceedings being conducted in open court, to “strengthen and promote the principles of open justice and free communication of information”. The provisions allowing a court or tribunal to make suppression orders are limited and are designed to operate as narrowly as is required to preserve the necessary balance.
- Proceeding Suppression Orders – allows a court or tribunal to make an order prohibiting or restricting the disclosure of information by publication of a report of the whole or any part of a proceeding or any information derived from a proceeding.
- Broad suppression Orders – allows a court or tribunal to grant an injunction to restrain a person from publishing information or doing any other thing to ensure the fair and proper conduct of a proceeding.
- Closed Court Orders – allows a court or tribunal to close a proceeding or part of a proceeding to the public or for the proceeding to remain open to only certain persons or classes of persons.
The threshold for the making of the orders is one of necessity. Such decisions always depend on the facts of any individual case.
It depends on the jurisdiction, but broadly, a suppression order must be necessary in order to:
- Prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means.
- Prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security.
- Protect the safety of any person.
- Avoid causing undue distress or embarrassment to a complainant or witness in any criminal proceeding involving a sexual offence or a family violence offence;
- Avoid causing undue distress or embarrassment to a child who is a witness in any criminal proceeding.
The duration of any order is always limited by a specified period or future event not exceeding 5 years. This means that information may be suppressed at different stages of a matter and that if information is suppressed at a stage of a matter it may later become available.
Interested parties may make submissions to the trial judge about the length and conditions of orders. In fact, there was intense courtroom debate at one stage of Pell’s trials about these matters. There are penalties (fines and imprisonment) prescribed for any breach of orders.
It was the threat of prejudice to Pell and his right to a fair trial (or two) that was widely reported as being the reason for such strict suppression orders. The orders were never about a need to preserve personal protection for Pell’s reputation. The level of constant media attention, here and overseas (in some cases apparently occurring despite the existence of these orders) simply proved the need for the orders in the first place. The subsequent lifting of the orders and the level of access provided to the media at his sentencing hearing shows that at the appropriate time, after any threat to the right to a fair trial had passed, the public was given access to his trial in the most appropriate manner, consistent with the purpose of the Open Courts Act and the operation of suppression orders.
Pell’s progress through the courts was certainly an extremely high profile example of the way in which suppression orders can impact the dissemination of information about a criminal trial, and the public’s opinion about our legal system more generally.